Larson Acres must allow nitrate testing: Judge

JANESVILLE  A Rock County judge says the town of Magnolia can sample Larson Acres water for nitrates, but Judge James Welker on Friday warned town officials against making an “end run” around a ruling of the state livestock siting board.

It was the latest episode in the five-year battle between Larson Acres, the town and its residents.

Larson Acres had asked the town permission to house up to 1,500 heifers in a barn at 17162 County B. The family currently houses about 850 heifers.

Environmental experts who testified at one hearing said nitrate levels downhill and downstream of Larson Acres were routinely four to five times the thresholds considered safe.

In approving a conditional-use permit in March 2007, the town board attached numerous conditions, including one that Larson test his well water monthly.

But Wisconsin’s new livestock siting board in July reversed that condition, among others.

On Friday, the town board asked Welker to allow it to test the tile lines and the well on the Larson farm for nitrates. Glenn Reynolds, the town’s attorney, said Larson Acres had just injected manure in the soil.

But the Larsons’ attorney, Eric McLeod, said the request is more harassment and vilification of the family.

Welker decided to allow the testing, saying he was balancing the rights of the landowners with those of the residents.

He warned, however, that the approved testing was to be a one-time occurrence for information only.

“If the town attempts to do something with that information that may not be proper, this court has jurisdiction over all parties here, including the town,” Welker said.

Reynolds, in asking for authorization, said the town does not feel it can just stand back and wait for several more years of litigation. A group of residents and the town have appealed the siting board ruling.

The concentration of manure, a source of nitrates, is a problem caused by factory farms, Reynolds said.

The state law that created the siting board did not eradicate other governments’ authority or wipe out the Clean Water Act, Reynolds said.

Reynolds asked to test the water in the tile lines Friday, before the ground freezes and a predicted storm moves in.

Peter McKeever, representing Green and Rock Citizens for Clean Water, said his clients are worried about pollution getting to nearby Norwegian Creek.

“The citizens are simply concerned that information ought to be available, that they ought to know what’s happening to the stream,” he said, adding that tests showing lower nitrate levels would help make the controversy go away.

McLeod, representing the Larsons, said the question is one of fundamental property rights.

The town is singling out Larson Acres because it is defined as a “factory farm” while ignoring other possible sources of nitrate contaminates, including smaller farms, he said.

McLeod said experts say it is probably not possible to determine whether the nitrate contamination in the wells is better or worse than in Rock County or Wisconsin as a whole. Rather, the results are similar to many agricultural areas in Wisconsin.

McLeod said opponents are vilifying his clients, and held up a Janesville Gazette article in which Rosie Wilke, interviewed last year, speculated that the farm was responsible for high levels of nitrates in her well.

The town’s own expert later testified that Wilke’s well is not affected by Larson Acres.